Terms of Service

These Terms of Service (the “Agreement”) are a legal agreement between you as the user and Emarky B.V., the owner of UpViral.com, a private limited liability company registered under Dutch Law, having its registered address situated at Gageldijk 21, 3602AG, Maarssen, The Netherlands (“UpViral”, or “We” “Our” or “Us”), that governs your limited, non-exclusive and terminable right to the use of the UpViral Site and Services as defined herein. By making use of the services, you agree to be bound by the terms of this agreement.

If You do not agree to this Agreement, You must not sign up for an Account and shall not make use of any of the Services or the Site. By agreeing to this Agreement, You acknowledge that You have read this Agreement, understood it, and agree to be bound by its terms and conditions.

We reserve the right to change this User Agreement from time to time without notice. You acknowledge and agree that it is your responsibility to review this User Agreement periodically to familiarize yourself with any modifications. Your continued use of this site after such modifications will constitute acknowledgment and agreement of the modified terms and conditions.

1 - Use of the service

1.1. The service UpViral allow customers to create marketing campaigns such as giveaways and contests, designed to collect email subscribers and reach through social media. You determine the content of the campaigns and emails. Your use must be legal under applicable anti-spam law.

1.2. To use UpViral, you first need to register. After completing registration, you can directly log into your account and use the service.

1.3. You must secure access to your account using the username and password against third parties. In particular you must keep the password strictly confidential. Emarky B.V. may assume that all actions undertaken from your account after logging in with your username and password is authorized and supervised by you. This means you are liable for these actions, unless and until you have notified Emarky B.V. that someone else knows your password.

1.4. UpViral allows you to process personal data. Emarky B.V. acts as a processor as that term is defined in the Dutch Data Protection Act; you are the controller. You indemnify and hold harmless Emarky B.V. against all claims by third parties in connection with this Act.

2 - Terms of use

2.1. It is not permitted to use UpViral for any purpose that violates Dutch or other applicable law or regulation. This includes (among others) the storage or transmission of data using the service that is slanderous, libelous or racist.

2.2. In particular it is not permitted to send out mailings without having an adequate permission (opt-in) as per the Telecommunications Act (or a valid legal ground for sending e-mail without opt-in, in accordance with the rules set by the Dutch Consumer and Market Authority). Emarky B.V. may suspend or interrupt the transmission of a mailing when a violation of this clause is suspected, for example because complaints are being received. Transmission will resume only if adequate proof is supplied by you that no violation is actually occurring.

2.3. Should Emarky B.V. discover that you violate any of the above, or receive a complaint alleging the same, then Emarky B.V. may intervene to end the violation.

2.4. If in the opinion of Emarky B.V. the continued functioning of the computer systems or network of Emarky B.V. or third parties is actually or under threat of being damaged or jeopardized, for example through excessive transmission of e-mail or other data, leaks of personal data or virus activity, Emarky B.V. may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.

2.5. Emarky B.V. is at all times entitled to file a criminal complaint for any offenses committed through or using the service.

2.6. Emarky B.V. may recoup from you all damages it suffers as a result of your violation of these terms of use. You agree and hold harmless Emarky B.V. from all third-party claims arising out of your violation of these terms of use.

3. Availability and maintenance

3.1. Emarky B.V. actively maintains UpViral. In case maintenance is reasonably expected to negatively impact availability, Emarky B.V. carry out such maintenance at times when use of the service is relatively low. Maintenance is announced in advance whenever possible. Emergency maintenance can take place at any time and without prior announcement.

3.2. Emarky B.V. may from time to time adapt UpViral. Your feedback and suggestions are welcome but ultimately Emarky B.V. decides which adaptations to carry out (or not).

4. Intellectual property

4.1. The service UpViral, the accompanying software as well as all information and images on the website is the intellectual property of Emarky B.V.. None of these items may be copied or used without prior written permission of Emarky B.V., except and to the extent permitted by mandatory law.

4.2. Information you store or process using the service is and remains your property (or the property of your suppliers or licensors). Emarky B.V. receives a limited license to use this information for the service, including for future aspects thereof. You can cancel this license by removing the information in question and/or terminating the agreement.

4.3. If you send information to Emarky B.V., for example a bug report or suggestion for improvement, you grant Emarky B.V. a perpetual and unlimited license to use this information for the service. This does not apply to information you expressly mark as confidential.

4.4. Emarky B.V. shall refrain from accessing data you store or transfer using UpViral, unless this is necessary for a good provision of the service or Emarky B.V. is forced to do so by law or order of competent authority. In these cases Emarky B.V. shall use its best efforts to limit access to the information as much as possible.

5 - Subscription & Payments

5.1 - We offer several different Subscription Plans for Our Services. The applicable Subscription Term Plan depends on Your choice. Your Subscription Plan is selected during Your Account registration. Information about Our standard plans can be found on our pricing page. All fees quoted on our site are exclusive of VAT or any other taxes that may be applicable in Your jurisdiction.

5.2. Payment is possible by creditcard, by PayPal, or as explained further on the website.

5.3 - Unless Emarky B.V. is notified in writing at least three business (3) days before the end of the conclusion of your current subscription term (or any subsequent Renewal Term) that you do not intend to renew your subscription, you will be enrolled into an automatic renewing cycle for the same term at the conclusion of the subscription term. This applies to all subscription plans involving payment, and works the same for both monthly and annual renewals. Any written notice of your intention not to renew shall be provided to the following email address: [email protected] The email must come from the registered UpViral account owner.

6. Limitation of liability

6.1. In no event shall Emarky B.V., its owners, suppliers or any of their respective owners, directors, employees, contractors and/or agents be liable to you or any Third Party for any direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including but not limited to any lost profits or revenue, interruption, loss of programs or other information, or any other pecuniary loss) arising directly or indirectly from (i) Your use of or access to the Site and/or Services, or any content, products or services distributed on or provided through the Site and/or Services, (ii) for any failure or interruption of the Site and/or Services; whether arising out of errors, omissions, loss of Data, defects, viruses, interruptions or delays in operations or transmission or any other cause, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if Emarky B.V. or its suppliers have been expressly advised of the possibility of such damages.

6.2. In any event, and without prejudice to the above, Emarky B.V.’s total maximum aggregate liability under this agreement, including any annexes herewith, or in respect of the use or exploitation of any part or all of the Site or Services, the content or user material in any manner whatsoever shall not exceed your monthly subscription fee.

7. Term and termination

7.1. This agreement enters into force as soon as you first use the service and then remains in force until terminated.7.2. Emarky B.V. is entitled to terminate the agreement if you have not used the service at all in the last 18 months. In such an event Emarky B.V. shall first send a reminder mail to the e-mail address connected to your account.7.3. You can export the data you store or process using the service at any time through the interface.

8. Cancellation & Refund Guarantee

8.1 You can cancel your subscription by sending an email to [email protected] stating you want to cancel your plan/subscription. If you’re within 30 days of your purchase, you have the right to request a refund – which should also be requested by emailing [email protected] We will then process the refund within 5 business days.

9. Data Retention

9.1. Emarky’s BV commits to securely storing data on behalf of our customers in accordance with their subscription plan and timeframes corresponding to each subscription plan. All data exceeding the stated timeframe will be routinely and automatically deleted from our systems.

9.2. You expressly acknowledge and accept that Emarky B.V. does not provide any archiving or backup services, and may delete Data that is no longer in use and exceeds the timeframes stipulated in the applicable subscription plan. Emarky B.V. expressly disclaims all obligations with respect to archiving, storage and backup of Data.

10. Privacy & Data Protection

10.1. Please refer to our Privacy Policy for details on our privacy practices with respect to the UpViral service. You acknowledge that, by using our services, you may process information which is considered as being Personal Data and/or Personal Data information that is considered sensitive under the laws applicable to You. You acknowledge that you shall be solely and exclusively responsible to take all the necessary measures on your website/app and for obtaining any consent that you are legally obliged to obtain from your users/customers.

10.2. By accepting the terms contained within this agreement, including its annexes, You acknowledge represent and warrant that you shall comply with all applicable laws, including but not limited to Data protection and privacy laws and that You shall indemnify UpViral Indemnified Parties against any Third Party claims related to violation of such applicable laws in the use of the Service.

10.3. Privacy Policy on your website/campaign : We shall not be held responsible or liable for your failure to provide a legally adequate privacy policy that discloses your use of our services. Failure to implement privacy policy compliant with applicable data protection laws on your website/campaign might result in the termination of your account.

11. Miscellaneous provisions

11.1. Dutch law applies to this agreement.

11.2. Except to the extent determined otherwise by mandatory applicable law all disputes arising in connection with UpViral shall be brought before the competent Dutch court for the principal place of business of Emarky B.V..

11.3. For any clause in these terms and conditions that demand that a statement must be done “in writing” to be legally valid, a statement by e-mail or communication through the UpViral service shall be sufficient provided with sufficient certainty the authenticity of the sender can be established and the integrity of the statement has not been compromised.

11.4. The version of any communication of information as recorded by Emarky B.V. shall be deemed to be authentic, unless you supply proof to the contrary.

11.5. In case any part of these terms and conditions are declared legally invalid, this shall not affect the validity of the whole of the agreement. The parties shall in such an event agree on one or more replacement provisions that approximate the original intent of the invalid provision(s) within the limits of the law.

11.6. Emarky B.V. is entitled to transfer its rights and obligations under this agreement to a third party as part of an acquisition of UpViral or the associated business activities.